It was just over 2 months ago that the EU’s chief negotiator said, “I can’t negotiate with myself”. Michel Barnier was of course referring to the British delay in getting stuck into the complex technical, judicial and financial issues associated with the Brexit negotiations.

This last weekend, David Davis, the UK Brexit secretary, challenged Barnier’s team for not moving ahead fast enough with the negotiations, a charge that was hotly denied.

This week’s debate over the reach of the European Court of Justice, triggered by the release of a UK government policy paper on Monday, may see the go-slow between the UK and EU negotiators unlocked. But exactly how these negotiations will unfold is anyone’s guess. And just how they might be applied to UK natural products selling in the EU, or vice versa, is even more uncertain. This is particularly the case because views at high levels within the UK government are so varied, with some Cabinet ministers wanting a clean break (hard Brexit), others a very gradual departure from the EU (soft Brexit) – with a third category of ‘inbetweeners’ - this latter category being the camp of prime minister Theresa May and Brexit secretary David Davis among others.

It would be difficult to argue that views from the EU’s side haven’t generally been more consistent.

Natural product trade impacts

Monday’s release by the UK government of the latest policy paper outlining ways in which the UK might handle its relationship with the European Court of Justice was the first of several reports to spell out the likely position of David Davis’ Brexit team.

In short, the UK wants to end the European Court of Justice’s jurisdiction in the UK once it exits the EU. At the same time, it wants to make sure that there is an arbiter over trade disputes that might arise. It’s proposed various models to make this work, including a joint committee or relying on the WTO. For EU member states, the European Court, more formally the Court of Justice of the European Union, one of over 10 institutions of the European Union, is the highest arbiter.

It seems something of a no-brainer that if the negotiation is successful and the UK successfully extracts itself from the EU, the ECJ’s jurisdiction will ultimately not apply. But there are complex issues over timing. When it comes to trade, are we talking about goods that were traded before or after the formal withdrawal date, planned for March 2019? The EU’s position is quite clear here, it envisages that UK products already lawfully sold on the EU single market before the withdrawal date should continue to be able to be sold in both the UK and EU markets. But the EU’s position comes with a disclaimer: either party should have the capacity to prohibit or restrict trade of such products if the EU or UK was “justified” on “serious grounds of health or safety”.

To us, this issue of ‘perceived’ risk to public health will remain the biggest sticking point – and the biggest obstacle natural products will face. Time and time again, we’ve seen regulators or national courts misrepresenting the safety of products in order to ban or restrict their sale.

After Brexit, such problems are, we believe, as likely to originate in the UK or the EU. In fact, recent history of actions by national authorities would suggest that the UK authorities, in particular the UK medicines authority, the MHRA, is among the most restrictive in the UK when it comes to perceptions of risks from botanical food supplements.

So, while we and others observe and seek to influence the negotiations, we offer one suggestion: please do not imagine for one minute that a removal of the jurisdiction of the ECJ from the UK will equate to a highly liberal, US-style regime for natural products in the UK.

If David Davis’ team gets its way, the Supreme Court in the UK will become the final arbiter of decisions relevant to UK trade within the UK, in place of the ECJ. We think that’s entirely rational and a good thing. But, unlike the ECJ, the Supreme Court will be a newbie to the issues surrounding the legal sale of natural health products and could easily be swayed by anti-natural health ‘experts’ linked either to the MHRA or the skeptic movement.

Whether we like it or not, and whether or not the UK government will care to admit it or not, if Theresa May’s government want to maximise certainty for UK businesses, the judges in the Supreme Court will need to keep more than a “half an eye” on past ECJ rulings. For the last two or so decades, a series of these rulings relating to natural products have been seminal to keeping products on both the EU and UK markets that national authorities have sought to have banned.

Let’s keep this firmly in mind as the negotiations proceed and be careful what we wish for.

For a summary of the various contrasting positions and views put forward by different organisations and government entities around the issue of ECJ jurisdiction in the UK, check out the table below.

Table: Who said what and when about European Court of Justice jurisdiction in the UK post-Brexit
When Who What said
08/06/2016 Telegraph Business Opinion / British Judiciary system  Anger at ECJ encroaching on English Bill of Rights — anger at failed promise of David Cameron’s ‘Sovereignty Bill’ to give UK Supreme Court “powers of ‘ultra vires’ review to determine whether the ECJ is itself flouting EU law”
15/01/2017 Conservative Home - Theresa May speech “We will leave the EU altogether. We will seek to opt back, so to speak, into bits of it - but outside the ECJ’s authority.”
16/05/2017 Telegraph ECJ ‘landmark ruling’ handing expanded trade negotiation powers to Brussels. Trade experts said ECJ ruling could substantially reduce the risk of any future EU-UK Free Trade Agreements getting bogged down in EU national parliaments
21/06/2017 Ashurst  Current EU trade deals with Singapore require member state ratification - in order to avoid this, UK could opt for agreement that includes only basic trade provisions falling within exclusive competence of EU. If pushing for a series of agreements over different areas, EU would only likely agree with a “guillotine” clause: if one agreement falls, the others fall too.
03/07/2017 European Futures “From UK perspective, leaving the EU means no longer being bound by the decisions of EU institutions, including the ECJ. For the EU this is not necessarily the case, because it is a constitutional order and the Brexit process must be compliant with its constitutional requirements. One of these requirements may be a continued role for the ECJ” — European Economic Area (EEA) Agreement dispute resolution mechanism binds interpretations of EU law and international court, meaning discrepancies would ‘interfere with the ECJ’s exclusive jurisdiction and cannot be concluded.’
08/07/2017 Conservative Manifesto p.38 “The [Great Repeal Bill] would also create the necessary powers to correct the laws that do not operate appropriately” Little to no mention of how transition would actually work - extremely barebones
Jul-17 Institute for Government analysis on Brexit v ECJ  Govt ‘murky’ over how transition of law will take place — Repeal Bill white paper looking to ‘convert’ ECJ historic law into UK as a reference point for continued UK case law, but transitionally ECJ will still have jurisdiction over a lot of those legal areas. If there is a conflict between a converted EU-derived law and a UK law that came into force pre-Brexit, EU law would “continue to take precedence over the other pre-exit law”. Fear on interpretation of law once converted. “EU laws are interpreted … with less focus on the literal meaning of the text and more on the purpose of the measure. … There is no point imposing a literal style of interpretation on laws that were not designed for it.”

European Commission responses to Withdrawal
European Commission responses to Withdrawal
European Commission responses to Withdrawal
European Commission responses to Withdrawal

In terms of market goods post-UK withdrawal from Union, all items must still abide in compliance with current EU law. Any goods ‘lawfully placed on the single market before the withdrawal date’ will continue to be made available to the UK and in circulation with Europe. Following the UK’s departure, the EU’s activities will ‘eventually come to an end’. Any residual continuation, however, requires protection equivalent to current status. This will also apply to any ongoing judicial and administrative procedure, i.e. ongoing reviews and disputes between the UK and the EU. Despite supposed withdrawal from legislation with the Great Repeal Bill, the UK must grant the same level of access and compliance to EU institutions and agencies who are currently undergoing diplomatic or investigative business within the UK.
Independent / Theresa May
Independent / Theresa May
“Reality bites” - European sources suggested May’s previous stance “untenable”, PM ‘knows will face anger from Brexiteers if does not sufficiently banish EC’s influence’. Now only seeking to end direct jurisdiction.‘Embarrassing admission’ after Tory flagship conference speech that UK is not leaving EU “only to return” to ECJ’s jurisdiction - the face of how difficult it will be to unwind from EU precedence now very apparent
22/08/2017 Express / Brexit campaigner Hugh Bennett  “ECJ is just the judicial arm of the Commission: it’s there to uphold the treaties … it’s not really an impartial judiciary.
”Supports EFTA court model”
23/08/2017 HM Gov ‘Enforcement and dispute resolution’ paper  Bound by agreements with EU as matter of international law, but not necessarily translated into UK internal legal order.
23/08/2017 Mirror response to HM Gov paper  Theresa May has pledged ECJ’s jurisdiction would end once UK quits bloc … latest blueprint suggests UK to remain subject to ECJ laws for years during a transition period